Capacity to Marry, revisited
(Have you heard it all before? Your kids may not have..)
As people are living longer, and our society ages, more seniors are breaking and entering relationships. A few years ago, a statistic was published in Canada stating that the highest rate of marriage breakup in Canada was, by age, among those Canadians age 85 and older.
It is not necessarily a surprise. Seniors who are fortunate enough to retain reasonable cognitive and physical health, may want companionship, where their spouse predeceased them or where their relationship had ended.
The “other side” of that scenario is something called Predatory Marriages.
This is a legal term which refers to individuals whose relationships have ended (by death or breakup), who then become “targets”. Persons seek to establish relationships with them, with the ultimate goal being to take some or all of their assets. Several cases have in recent years been decided in B.C., in this controversial area.
The other issue that arises with seniors is capacity. It is hardly surprising that the launching of a marriage or marriage-like relationship among seniors may give rise to a concern whether “they understand what they’re doing”. Where there are children, there is concern, not only regarding the protection of their parents’ assets but also the ability to be able to finance the cost of their parents’ future care.
Earlier this month, the Ontario Court of Appeal released reasons for judgment in a case called Tanti v. Tanti. The Court had to decide whether the Senior in question had capacity to marry a much younger person. At the Trial, the Court decided that the Senior did have capacity. The Senior’s son appealed.
The Senior met the companion when he was looking for help in small projects around his house. The companion came to help. The relationship developed and, after 3 years, the couple referred to each other as “companions”. Family and friends knew of it. In 2018, the companion moved in with the Senior. The Senior’s son objected to the relationship. When he learned that the companion had moved in with his Father, he took his Father to a Gerontologist. The opinion was that the Senior had cognitive impairment but could remain living at home, with assistance.
A year later, at the 89th birthday party, the Senior asked the companion to marry him. The companion was hesitant, knowing that the son would likely object and be angry. The Senior persisted, however, and a few months later, they married (in July, 2019).
When the son discovered the marriage, a few days later, he came to the house, became verbally abusive and the Police were called, whereupon he left. The son returned the next day, demanded to know what his Father’s plans were with respect to his property and, again, left after Police came to the house.
The Senior then went with his wife to a Lawyer and executed a Power of Attorney (the Lawyer determined that the Senior had capacity). Shortly after, the wife left to visit her family. While she was away, the son attended at his Father’s bank and was told that he no longer had access to the account. The son then took his Father to see the Gerontologist, again, and was told that his Father lacked the capacity to handle his financial affairs. A second medical opinion obtained by the son was that his Father did not have capacity to make a Power of Attorney.
The son moved his Father into the son’s own home. He changed the locks on his Father’s home, so when the wife returned, she could not gain access. The son launched the legal action and another Doctor rendered the opinion (this was six months after the wedding) that the Senior did not have capacity to manage his financial affairs.
The first problem was that neither medical assessment addressed the issue of the Senior’s capacity to marry, and that assessment had to be done at or around the time of the marriage.
The Trial Court’s decision was partly based on the fact that the marriage was not “predatory” and was not a rush to the altar. The Court held that it was a relationship of two mature adults, that developed over a period of years. There was no finding, before the marriage, that the Senior had dementia or could not manage his property.
On Appeal, it appears that the Court focused on the lack of evidence of the Senior’s incapacity at the time of the marriage (July, 2019). The Appeal Court upheld the decision of the Trial Court, that the marriage was valid.
The issue of capacity, complex as it is, will continue to arise, in issues relating to the making of Wills, Powers of Attorney as well as with marriage. In this case, it appears that the son could have handled his Father more diplomatically (that is, without any need for Police) but more important, it seemed clear that the Senior wanted to marry his companion and he was determined. It is reasonable, in my opinion, for children to be concerned when their elderly parent enters a relationship with a significantly younger person. However, that cannot, in itself, indicate a lack of capacity.
Important as it is for children to watch and protect their parents as they age, it is just as important to understand their behavior, and make sure their Doctor sees them regularly, where necessary.